2016 (12) TMI 481 - AT - Service Tax

Export of services - sale promotion and back office accounting services - whether service tax is liable to be paid by the appellant under the category of business auxiliary service, on reverse charge basis? - Held that - Service tax is a destination based consumption tax. Even though the activities of sales promotion and back office accounting has been rendered in India, the service is provided to the foreign principal. This is clearly evident from the fact that the benefits of the services provided by the appellant has accrued to the foreign principals of the appellant who has in turn, paid the consideration to the appellant in convertible foreign currency. This has also satisfied the second condition specified in the export of Services Rules. We also note that the CBEC clarification has been issued in the context of situations of the type faced by the appellant in the present case - the activities covered in the present dispute are clearly covered within the Export of Service Rules, 2005. Consequently no service tax will be payable on reverse charge basis - appeal allowed - decided in favor of appellant-assessee.

Summary

Issues:
1. Whether the services provided by the appellant qualify as export of service under the Export of Service Tax Rules, 2005.

Analysis:
The appellant, engaged in providing various innovation services, received payment in convertible foreign exchange for sale promotion and back office accounting services from their associated enterprises abroad. Initially, they paid service tax under business auxiliary services on a reverse charge basis. However, realizing that the consideration received might be covered under the Export of Service Tax Rules, they filed a refund claim which was rejected by the Original Authority and the Commissioner (Appeals). The main grounds of appeal were based on the contention that the services provided by the appellant to the principal located outside India qualify as export of service under Rule 3 (1) (iii) of the Export Rules. They also relied on CBEC Circular No. 111/05/2009-ST and various case laws to support their claim.

The Tribunal analyzed whether the services provided by the appellant could be considered as export of service under the Export of Service Tax Rules, 2005. The key conditions under Rule 3 (2) were examined, which required the service to be provided from India and used outside India, with payment received in convertible foreign exchange. The lower authorities held that since the service was rendered in India, the first condition was not satisfied. However, the Tribunal referred to a CBEC Circular which clarified that the location of the service receiver, not the place of performance, is crucial for services falling under Category III. The Circular emphasized that the benefit of the service should accrue outside India, even if the activities take place in India. The Tribunal noted that the benefits of the services provided by the appellant had accrued to the foreign principals, who paid in convertible foreign currency, meeting the conditions of the Export of Service Rules.

Furthermore, the Tribunal cited case laws such as Paul Merchants vs. CCE, Chandigarh, which highlighted that the destination of services should be based on the place of consumption, not the place of performance. The Tribunal concluded that the activities in dispute fell within the Export of Service Rules, 2005, and no service tax was payable on a reverse charge basis. Consequently, the appeal was allowed with consequential relief.